Duty to disclose all in litigation? Differences between Scotland and England

The Supreme Court has recently passed down a judgment dealing with the effects of a failure to locate and disclose all relevant documents. This article looks at one of the challenging issues in litigation: the requirements of disclosure.

6 July 2016

The case before the Court was a judicial review of a decision to refuse to let Chagos Islanders return to their original homeland. Residents of Diego Garcia, the largest of the islands, had originally been removed and resettled in around 1971 to make way for a US military base. In 2000, the order prohibiting resettlement of the island was revoked, and a feasibility study carried out to see whether it would be possible to resettle former inhabitants. This report found that costs would be prohibitive and life there precarious, and so a fresh prohibition on residence or presence on the island was made. This was judicially reviewed, and the House of Lords upheld the validity of the order in 2008. 

Certain documents relating to the drafting of the report which cast doubt on its reliability were, however, not disclosed before the House of Lords in 2008. The documents had been requested, but could not be found. They were eventually discovered in an off-site archive in the course of separate litigation proceedings, and so the applicant in this case appealed the 2008 judgment on the basis that failure by the Secretary of State to disclose the documents was contrary to its duty of candour in public law proceedings. 

The decision was appealed
The Supreme Court found by a majority of three to two that the judgment should not be set aside. The Court has inherent jurisdiction to correct injustice caused by unfair procedure, or because of fresh evidence being revealed, but only exercises this if the judgment is thought to have been wrong as a result. Lord Mance ultimately found that there was no probability, likelihood, prospect or even a real possibility that a court would find the Secretary of State’s actions in relying on the conclusions of the report had been irrational or unjustifiable at the time, even taking into accounts these documents, and so the application failed.

Despite the failure of the application, the case is important in highlighting parties’ duty of candour in English public law proceedings. In such proceedings, the public authority whose actions are under challenge has a duty to make full and fair disclosure of all relevant material, and the claimant has their own duty of candour to disclose all relevant facts.

The Secretary of State accepted that the documents “should have been capable of location and should have been located and disclosed pursuant to his general duty of candour […] The failures in this regard were and are highly regrettable”. Although one dissenting judge described the failure as “reprehensible”, the Court accepted that the failure was not due to any deliberate misconduct, but still considered “what significance would or might have attached to, and what consequences would or might have flowed from” the disclosure of the documents in deciding whether or not to re-open the original case.

Differences between Scotland and England
The duty of disclosure is one of the most important areas of distinction between Scotland and England. In Scotland, there is not a general duty to disclose, unless a document is found that is contrary to the case that has been pleaded. If this happens, the solicitor acting must disclose this to the court. In addition, parties wishing to recover particular documents from the other side or a third party against their will must seek an order from the court sanctioning their recovery request. The court will authorise this if the party demonstrates that the documents are relevant to the claim and support its pleaded case.

Points to note
This judgment underlines the importance of fully searching records when preparing for litigation, particularly in English actions where there are wide duties to disclose relevant material. As most searching is now of electronic databases, appropriate use of key words and sensible filing systems are critical.

The Supreme Court Justices were unanimous in finding that it would have been open to them to recall the 2008 decision had they felt the documents might have materially impacted on the outcome. Even accidental failure to comply with disclosure obligations can lead to serious consequences if the documents which were not disclosed might have affected the original decision.